Psychological sleuths shrink jurors

The two men in suits wouldn’t stand out in a crowd, but they did appear to be a tad different from the others inside a small Air Force courtroom.

They held pens and legal pads and rarely smiled, but paid close attention to the officers and enlistees as they were questioned. That was especially true with a colonel who confidently proclaimed his ability to spot a liar.

“I’m 50 years old in two weeks and I’ve been around,” the officer explained, adding that he had four kids who’ve sharpened his observational powers.

“I think I’d go with what Judge Judy says,” he said a moment later. “If it doesn’t make sense, it probably isn’t right.”

This moment of levity had been long in coming as we watched the military judge, Lt. Col. Terry O’Brien, and six attorneys sift through 14 potential jurors. They’ll decide if an Air Force instructor, Staff Sgt. Luis A. Walker, is guilty of illicit sexual contact with 10 women in basic and technical training at Joint Base San Antonio-Lackland, the base’s worst scandal ever.

You didn’t need to be a forensic psychologist, as those two guys were, to know the 49-going-on-50 bird colonel wasn’t going to make the cut. It also wasn’t so hard to figure that out in the case of the senior master sergeant who recalled the agony his ex-wife endured each year she marked the anniversary of being raped by a supposed friend at knifepoint.

She was 15.

That was a week “when she’d get depressed,” he said.

At least three themes emerged over the course of questioning. O’Brien painstakingly learned what each person knew from media accounts of the case. She’d start by asking about news accounts, pivot to another subject and later return to the issue once more, pressing a little harder and deeper.

The defense asked potential jurors if news accounts would sway their view of Walker, who sat expressionless, hands clasped in his lap, throughout the day. Joseph Esparza, a civilian attorney from San Antonio leading Walker’s team, also wondered how jurors might react if his client didn’t testify or even if the defense mounted no case at all. They agreed with the defense that the number of prosecution witnesses didn’t prove anything.

There are a lot of witnesses. I counted at least 25, most of them women.

Prosecutors wanted to be sure the jury wouldn’t be bothered if some of the witnesses, presumably the 10 women who were listed as victims in an Air Force charge sheet, had hazy recollections of some events. They were asked: Do you agree that details of memories fade and get mixed up, or that “upsetting” memories can impair recall? And did they also agree that witnesses might only remember the “gist” of an incident, and that in sex crimes there may be no witnesses to substantiate the allegations?

All raised their hands affirmatively, but later Esparza asked them if they would take into account the specificity of a report in determining its credibility. They replied yes. He also asked if they’d consider a person’s ability to recall obvious details of an event in determining credibility.

“It’s contextual,” a senior NCO said, “and I’ll leave it at that.”

Sensing confusion, the judge jumped in and Esparza repeated the question. All the while, the prosecution’s jury selection expert jotted down notes on a yellow legal pad that contained what looked like a seating chart with the names of each potential juror. This was a critical moment, I sensed, in part because the panel’s collective answer to Esparza contradicted its earlier response. That was when prosecutors asked if they could weigh evidence even when it was emotionally charged, muddled or lacking in detail.

I didn’t notice what the defense expert did, but what happened later reflected the way events unfolded that hour. The senior NCO was one of seven excused from the jury. He struck me as one of the more thoughtful members, and his answer about requiring context in determining credibility struck me as correct. But after huddling out of the courtroom during a recess, the defense had him among six it didn’t want on the panel.

Like a lover jilted abruptly, you wonder what happened. Was it something he said? The way he said it? A twitch in his face? A frown?

Those forensic psychologists, specializing in a job some might liken more to witchcraft than science and paid with your taxpayer dollars, could tell you.